LawNews - Issue 22

NEWS Jul 09, 2021 Issue 22

Inside ■ HUMAN RIGHTS

The problem with hate speech legislation P03

■ THE COURTS

Two newbie judges’ stories P06

Be very afraid of adls.org.nz

HATE SPEECH LAW

Contents 03 DEFINITION SCOPE SUPPRESSION

Why hate speech laws won’t work

09 COVID-19 LOCKDOWN BORA

Legality of Covid-19 lockdown back in court

14 APPEAL SEX OFFENDING MEMORY

Supreme Court rebuffs fresh Peter Ellis evidence

06-07 10-11 ADLS EVENTS

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13 CPD IN BRIEF

Panel convenor Brigette Shone (Russell McVeagh), Judge Kirsten Lummis and Judge Belinda Sellars QC

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Cover: PM Images/Getty Images

02

Jul 09 2021

Photo: Lisa Valder / Getty Images

Issue 22

But after accepting SUFW’s online booking, the council changed its mind, saying after doing ‘research’ and seeking feedback from the community, it wanted to replace the intended SUFW meeting with its own version: a “facilitated debate that enabled all the various viewpoints surrounding the bill to be aired”. The council also took it upon itself to invite the minister in charge of the bill, Jan Tinetti, to speak at the meeting. One trans activist in the community described SUFW as a ‘hate group’ – a label SUFW denies, saying its members have a broad range of views.

HUMAN RIGHTS LAW/CONSTITUTIONAL LAW SUFW objected to the council’s restrictions and filed for judicial review (Daphne Kaye Whitmore v Palmerston North City Council).

When the matter came before Justice Gerald Nation late last month, the council denied it was in breach of the free speech provisions in the Bill of Rights Act 1990 (BORA).

It said its decision was rational and reasonable in terms of BORA and it was empowered under the Local Government Act 2002 to exercise control over the city’s library “in a manner which it considered promoted social and cultural wellbeing in Palmerston North, even when this might impose some limits on BORA-protected rights”. The council also indicated it would not allow SUFW to express its views about the proposed legislation at the meeting in the way the Rod Vaughan The deliberate use organisation wanted to. in the proposals of In finding for SUFW, Justice Nation said no safety or As pressure mounts on the Prime Minister to ditch the security issues had been brought to his attention and there government’s proposed hate speech legislation, the vague terms confers High Court at Palmerston North has been was sufficient evidence before him to be clear that SUFW “cannot rationally unfettered lawgrappling with an issue that is likely to Juries will be be described as a hate group”. In his escalate if the government’s plans become writing power on asked to solve view, the council’s decision involved a law. problems “significant failure to recognise SUFW’s It arose when a group called Speak Up the courts right to freedom of speech and freedom of for Women (SUFW) booked the councilphilosophers peaceful assembly”. SUFW spokesperson owned Palmerton North library to hold have struggled Beth Johnson says the group has a public meeting to discuss another with for centuries encountered resistance from councils in government plan – the intended passage almost every town it has tried to hold a into law of the Births, Deaths, Marriages meeting as a result of pressure from its and Relationships Registration Bill, political opponents. deferred by the previous government after opposition from NZ First.

No definition or scope SUFW opposes the sex self-identification clauses in the bill, saying there has been inadequate public consultation Against this backdrop, lawyers, politicians and commentators and the bill risks unintended consequences for women’s sexbased rights, such as single-sex spaces like changing rooms Continued on page 04 and prisons.

Why we should be very afraid of the proposed hate speech laws

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from all sides of the political spectrum are lining up to oppose calling them “a huge win for cancel culture” which will create an even more divided society. the government’s proposed extension of our hate speech “They will put cancel culture on steroids,” he said. “This is a laws, currently enshrined in the Human Rights Act 1993 and solution looking for a problem. It will take away basic rights to the Harmful Digital Communications Act 2015.

Most complaints are about the lack of definition and scope free speech and it will shut down debate and make people too afraid to express valid opinions.” of the proposed changes – a problem, they say, that exists globally. As distinguished historian and AUT Professor Paul The proposals Moon put it in an interview with LawNews two years ago, the inability of global lawmakers to define hate speech is “a major The government’s proposed legislation will extend to religion stumbling block for all proponents of hate speech legislation… and yet-to-be-defined other groups the current offences of “There is no jurisdiction in the world where a statute inciting hostility or ill-will against, or bringing into contempt has been enacted that offers a clear definition of what hate or ridicule, any group on the grounds of colour, race or ethnic speech is. Consequently, it is left to the police and the courts origins. The offences will be enshrined in the Crimes Act and to determine. This raises the problem of citizens not knowing penalties increased from up to three months’ imprisonment precisely where the boundary of criminality of speech begins.” or a fine of up to $7000 to up to three years’ imprisonment or In his Bowalley Road blog site last week, left-wing political a fine of up to $50,000. commentator Chris Trotter urged the Prime Minister to In a discussion document, the Ministry of Justice says walk back her plans. In a post entitled I understand why you protection under this definition could be for ‘some or all’ of the want to do it, Jacinda – but don’t Trotter said: “The urge following reasons: sex (including pregnancy and childbirth), to suppress ideas and beliefs which contradict what one marital status, religious belief, ethical belief, colour, race, fervently believes to be the truth is not a healthy urge. It is a disability, physical or psychiatric illness, intellectual disability, totalitarian urge – an urge to bend the whole world to your or abnormality of a physiological or anatomical structure or way of thinking… function.

“One can only feel desperately sorry for the police as The list goes on to include people using wheelchairs, women turn against men, trans reliance on a guide dog, age, on TERFs (trans-exclusionary sexual orientation and, perhaps Anyone who thinks radical feminists), Māori on Pakeha, most controversially, political that a change in law will Christians on atheists, supporters opinion, which includes the lack of of Palestine on supporters of a particular political opinion or any diminish hate clearly has Israel, baby boomers on millennials political opinion. little grasp on history and neo-liberals on Marxists.

So what do the legal fraternity The courts will be full of angry and other free speech advocates and bitter complainants and make of it all? defendants. Juries will be asked On the issue of whether Ardern to solve problems philosophers have struggled with for and Faafoi fully understand what they are trying to achieve, centuries. Vast sums of money will be expended on lawyers.

Moon says: “If a minister of the Crown is planning to introduce And all in the name of strengthening New Zealand’s social legislation in this area, there is a minimum expectation that cohesion.” that minister would be familiar with the issues raised by the Meanwhile, back in the arena Jacinda Ardern and Justice proposed legislation and the provisions of existing legislation, Minister Kris Faafoi face accusations of being out of their in this case around speech. It seems that some senior depth and failing to grapple with even the most basic of members of the government are not as well briefed on this issues. issue as they ought to be and this is concerning.”

Asked by Newshub’s political editor Tova O’Brien how the Jordan Williams, general secretary of the Free Speech line would be drawn between permissible speech and hate Union, says alarm bells should ring if politicians have difficulty speech, Faafoi replied that he was the Justice Minister so it explaining what a proposed law change means or how it wasn’t up to him. That would be a decision for the police, he would be applied. said. To which a flabbergasted O’Brien remarked: “If they don’t “That is particularly so when dealing with the criminal understand the policy direction and intent of the law, how can law and restrictions on speech,” he says. “Some of the claims they expect the judiciary to interpret and apply the law?” made by the Prime Minister are demonstrably wrong.”

On the other side of the House, National and Act have been equally scathing, with Judith Collins describing the Continued on page 05 proposed changes as “a total cluster” while David Seymour 04

Photo: James Allan / Stringer / Getty Images

Continued from page 03

Prime Minister Jacinda Ardern

Kris Faafoi

Jul 09 2021 Issue 22

Continued from page 04

once such measures are enacted,” he says.

Lawyer and former Act MP Stephen Franks says Williams says it’s the “most bizarre approach to criminal comments made by both the Prime Minister and Faafoi show law” he has encountered. “It is an insult to those who suffer they are well out of their depth, “constitutionally and in terms from physical assault and offensive to those who have faced of analytical capacity. bodily harm as it distorts the way we assess the seriousness “Neither shows normal understanding of the role of of other crimes with similar penalties.” legislation or the legislator: the elementary requirement for As the Royal Commission in the Christchurch terror attack the rule of law that the citizen be able to know in advance noted, nothing in the government’s proposed changes around from written rules how the law will apply to them and their hate speech would have prevented the carnage. actions, and are predictable in application to unexpected “It therefore seems unconscionable for the government or novel circumstances. It shows disdain for the protection to use that massacre to advance this ideological cause,” our law is supposed to provide against the temptation of all Moon says. “Neither is there any in power to make up the rules as conclusive evidence from any they go.

Vast sums of money will jurisdiction where similar measures “The deliberate use in the be expended on lawyers. have been implemented that proposals of vague terms confers And all in the name radicalisation is reduced as a unfettered law-writing power on consequence. Indeed, the case the courts. That shows contempt of strengthening New could be made that restrictions on for the fundamental wisdom of our Zealand’s social cohesion the open expression of ideas could inherited tradition – to write law end up intensifying radicalisation. not for the well intentioned, but for It’s a not-so-unintended those who will abuse it for personal consequence of legislation and group power.” criminalising so-called ‘hate-speech’. Anyone who thinks that Or, as Williams puts it, “Given the difficulty and errors a change in law will diminish hate clearly has little grasp on ministers and the Prime Minister have made in trying to sell history.” their policy, how on earth is the average citizen supposed to Moon says the current law functions well and strikes the understand what is lawful and unlawful?” right balance between free speech and the need to protect Penalties people. “There is therefore no advantage whatsoever in the government’s plans to criminalise certain forms of speech.

Another issue is the severity of the proposed penalties, with The planned change to the law will represent a triumph of the maximum being harsher than the current penalty for coercion and signals that the state no longer regards all ideas assault. and opinions as valid.

Moon says not only is the penalty disproportionate but its “The fact that the government has refused to undertake severity will induce a halo effect, where people are frightened into silence in areas that may not be covered by the proposed comprehensive, peer-reviewed research is significant too. Had it done so, the findings most likely would have confirmed that changes. “I was in Eastern Europe during the communist era the present legislation functions particularly well.” ■ and saw first-hand the sort of fear that pervades a society

Paul Moon

Jordan Williams

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THE COURTS

Transitioning to the bench: two judges’ stories

They needed people who could get in there and get things done – to hit the ground running with trial work – and that’s the box I think we both ticked

Jenni McManus You don’t necessarily need to have been an A-student to become a judge.

Nor does your journey to the bench need to be a series of carefully planned steps. Having a young family is not necessarily an inhibition. And, of course, ticking the diversity boxes in some way is a big plus, as the Chief Justice has so often pointed out.

Last month, new District Court Judges Belinda Sellars QC and Kirsten Lummis spoke at an event organised by the Auckland Women Lawyers’ Association. Judge Sellars, a former criminal defence barrister, and Judge Lummis, a former Crown prosecutor and partner at Meredith Connell, were invited to reflect on their journey to the bench, their transition from practice to the judiciary and their experience so far.

Judge Sellars and Judge Lummis broke new ground at their swearings-in earlier this year: Judge Sellars’ husband, Stephen Bonnar QC, and Judge Lummis’ partner, Nick Webby, were sworn in as judges at the same time.

First up, both were asked to describe their route to the bench and why they had accepted the appointment.

Judge Sellars QC I had fairly recently taken silk which was a significant step for me. In terms of the work I was doing, there was quite a lot of legal aid work and it tended to be quite difficult. I also had quite a lot of private client work.

It was relatively stressful, and it was challenging. I had good work and one of 06

One of the issues for me is that you give a lot of yourself as a criminal defence lawyer and that was taking a toll on me.

It is an adversarial system and you are a fighter. And I’m not sure I want to fight all the time

my regrets is that the effect of [taking] silk was beginning when I was making my decision about coming to the bench.

I was also being approached to do things for the government.

But one of the issues for me is that you give a lot of yourself as a criminal defence lawyer and that was taking a toll on me. It certainly had its excitement but even as a silk, life doesn’t get that much easier. It is an adversarial system and you are a fighter. And I wasn’t sure I wanted to fight all the time. So that was part of my decision.

Prior to that I’d had a significant amount of time doing commercial litigation at Russell McVeagh. I came to the conclusion that that was turning me into a [person I didn’t want to be] and I decided a change was necessary.

Having started doing criminal work, I then went back to criminal.

I haven’t always been terribly focused on what I’ve done at any point, but I have taken up the challenges and opportunities as they’ve come and made the most of them.

Becoming a judge had been in the

back of my mind for a while and people had spoken to me about it at various times. I’d always been slightly suspicious of this because I felt like I easily ticked a lot of boxes in a non-threatening way.

But I think at its core, a lot of us become lawyers because we like helping people – it’s as basic as that. Certain things within the law and the reality of how you practise are difficult. I hated billing, I hated talking about money to people so [becoming a judge] seemed to be a way that you can use your skills to be of service.

It feels privileged to be able to do that in that way. In many ways it has also reignited my interest in the law. It has taken a lot of the stress out of it because I felt a lot of the stress in being a lawyer was having the feeling that something should go a certain way but feeling stressed that it might not end up that way.

Judge Lummis I certainly didn’t start at Russell McVeagh; my grades would not have made the cut. At the end of law school,

I didn’t even want to be a lawyer. It wasn’t until I did professional studies and we got to litigation that I thought ‘wow – this is me’ and I found myself.

Suddenly I wanted a job and I wanted to work in criminal litigation. I ended up in New Plymouth for my first job but that was fantastic because I was in a medium-sized law firm and was exposed to a full range of litigation.

It wasn’t just criminal. I also did some family; I did civil litigation with some insurance companies and that was a really good broad base from which to jump.

Then I went overseas for four years before returning to New Zealand. I’d grown up in Nelson and went to uni in Christchurch and I just couldn’t think about going back to a small town after London, so I landed at Meredith Connell where I have spent the past 16 years, prosecuting a full range of cases including a lot of sexual violence crime.

My career started broadly, then it got narrower and narrower. You get to the point where the options become somewhat limited in terms of where you might easily jump to. My ambition had been to go to the Bar, but it came down to a timing thing, and it turned out my gender and experience fitted with what was being sought.

After 16 years, it was a tough decision to leave Meredith Connell, but we knew there were going to be quite a few appointments at this time and I didn’t want to get to the point whereI

Continued on page 07

Jul 09 2021 Issue 22

Continued from page 06

was keen to become a judge, only to find there wasn’t a judge’s position available. So, it just felt like the right people were asking the right questions and saying the right things and now was the time.

My career has not been very planned – it’s been very ‘go with the flow’.

Covid had created a massive backlog of trials and I was part of a group of new judges funded through last year’s Budget to address that. They needed people who could get in there and get things done – to hit the ground running with trial work – and we both had the experience to allow us to help with that.

One thing Belinda said that really resonates is that it is an adversarial system, and you are constantly in a state of tension whether you realise that or not. So, the thing I’ve been enjoying is that you don’t go home feeling that state of tension that you would during a long trial. I don’t think I really appreciated that.

It’s a very different role. Nobody phones or emails. However, the sense of collegiality amongst the judges was a pleasant surprise and has made the transition run more smoothly, and I’ve had a really warm reception in Auckland. Belinda is a couple of doors down and Robyn [Judge von Keisenberg] is between us so you have a whole row of newbie judges which is great.

Judge Sellars One thing about becoming a judge is that your schedule is very much set in stone. Six months in advance you know what you will be doing.

So, you give away the freedom you have as a barrister but the freedom you gain is that you’re not on holiday [fielding] calls from people who’ve been arrested and dealing with endless

emails.

I was in chambers with my husband.

He was also a silk and we came to the conclusion that if one was giving up that freedom, it might make sense for both of us to do it. We were ready for a change, notwithstanding we both loved a fight and the thrill of the battle. But it’s been very good to have somebody sharing that whole process with you.

Judge Lummis Because I have a young family, I have found this first bit [the training] has been tough. Part of our induction involved travelling to different courts to gain experience alongside senior judges, so when [my partner] was going to Hamilton, I was going to Tauranga – things like that.

But it has been invigorating, being able to get advice from more senior judges. With both of us practising in Auckland, these are all people we’ve appeared before.

There is a genuine collegiality between the judges in the Auckland common room and people genuinely want to help you. The receptiveness of the judiciary in welcoming you and the willingness of everybody to share and to give their knowledge and their time has been amazing.

Both judges were then asked how their upbringing had provided a lens through which they viewed the law.

Judge Sellars I identify as New Zealand Māori, European and Vietnamese and I’ve been fortunate to have had an extremely diverse start to life in a small town, Wellsford. My father, uncle and grandfather all practised law in Wellsford. After my parents divorced, I had to spend time in Wellsford and Auckland, so I was exposed to a lot of different aspects of NZ culture.

I had my Vietnamese mother who was transplanted here as a student and

met my father at university. She was most disappointed that I went into the law rather than medicine.

All of that has helped me to understand the difficulties people face and that’s applicable not only to criminal law but also to commercial law. It has helped me to understand where people are coming from. I think it’s important when you remember that senior people in the law and the judiciary have been male and white for so long but that’s changing and it’s certainly shaping the law in a particular way.

Judge Belinda Sellars QC

Judge Lummis To some extent, I had the white privileged background, but it wasn’t extreme privilege – for example, there was no private schooling – but I’m certainly very conscious of having things that many of the people appearing before us do not. Growing up in Nelson, my exposure to other cultures, even Māori, was extremely limited.

Neither of my parents was academic.

They were practical people and my mother instilled in me the idea that girls could be anything they wanted to be. She became a farmer – the only female farmer in the district – and she was constantly challenging, and being challenged by, the other local farmers.

One of my favourite photos of my mother is of her drenching sheep in a skirt.

Both judges were asked what they missed the most about their previous jobs.

Judge Sellars I’ll tell you what I don’t miss: I don’t miss time-recording. And I’m having difficulty in not asking too many questions if the examination of witnesses is not going well. I’m having to put a huge brake on myself.

Judge Kirsten Lummis

more than 200 a day but I got only two today. I also miss my Meredith Connell colleagues. In my role there I led a team of graduates and was the ‘old lady’ whereas at Auckland District Court many of the judges are on acting warrants or nearing retirement age and I’m still getting used to walking into a room and being the ‘spring chicken’.

I have similar problems to Belinda in restraining myself from almost taking over the questioning. You do want to get in there and take over. I actually find myself talking to the defendants an awful lot and of course you have to ask permission before you do that.

I find I can see that they want to say something, so I sort of jump in, then think ‘oh there’s a procedure for this’.

That’s a practical, ‘wanting to get in and sort it all out’ thing. ■

Judge Lummis I don’t miss the emails. I used to get

See also ■ 07

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Lawyers for Climate Change, a group representing more than 300 lawyers, has filed for judicial review of the commission’s advice, saying it understates the necessary reduction in greenhouse gases. It is seeking orders that the commission acted unlawfully and should reconsider its advice on New Zealand’s contribution to global climate goals. Climate Change Minister James Shaw has been named as second respondent.

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Applications close 26th July 2021 – please send a covering letter and your CV to the Manager Ellie Herbert at Rotorua District Community Law Centre ellie.herbert@rdclc.co.nz Copies of the position description are also available.

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Briefs

The Manhattan District Attorney’s office has charged Donald Trump’s real estate company, the Trump Organisation, with running a 15-year tax fraud scheme to help executives avoid tax. A top The DA, Cyrus Trump lawyer, Allen Weisselberg, Vance, has was accused of dodging taxes on US$1.7 million worth of income. assembled a Weisselberg was one of Trump’s grand jury and closest financial advisors. is determining This is the first indictment to come whether to bring out of a long investigation by the District Attorney. Trump himself is charges against facing a raft of investigations and Trump lawsuits touching on his business dealings, claims of misconduct towards women and his role in the Capitol riots. The DA, Cyrus Vance, has assembled a grand jury and is determining whether to bring charges against Trump. ■

Jul 09 2021 Issue 22

CONSTITUTIONAL LAW

Legality of lockdown goes to Court of Appeal In August Borrowdale won a High Court declaration that the first nine days of the lockdown, between 26 March and 3 April, were unlawful Jenni McManus The Court of Appeal has begun hearing an appeal brought against the Crown by former parliamentary draftsman and lawyer Andrew Borrowdale, who is seeking a declaration that the Director-General of Health did not have the power to put New Zealand into level 4 lockdown in March last year.

Borrowdale filed for judicial review of the government’s lockdown decision in May last year. In August he won a High Court declaration that the first nine days of the lockdown, between 26 March and 3 April, were unlawful and contrary to s 5 of the Bill of Rights Act 1990 (read more).

Borrowdale, who is represented by Jim Farmer QC, is now appealing the High Court’s finding that the government rectified the problem after the first nine days and that the Jim Farmer QC director-general did, in fact, have the power under s 70 of the Health Act to lock down the entire country, including those who were not ill.

Farmer told the court this week that this was not the case. Even in exceptional circumstances the rule of law must be followed, he said, and the government needed to change the law if it wanted to lock down the entire country. In fact, the error was not corrected until June 2020 when the Covid-19 Public Health Response Act was passed.

Farmer said prior to the 26 March lockdown Cabinet recognised it might need special legislative powers but instead left it to the director-general to exercise his much more limited powers under the Health Act to effect the lockdown.

Parliament now needed to squarely confront what had happened and accept the political cost.

Borrowdale has never contented that strong measures were not needed to deal with Covid-19 but argues the government must still act within the law.

LawNews first raised the issue in a commentary piece by Auckland barrister Warren Pyke in its issue of 10 April 2020. ■

DEAN, LAW SCHOOL

AUCKLAND UNIVERSITY OF TECHNOLOGY • Enhance the growing reputation of the AUT Law School • Strategically embrace the challenge of meeting diverse student needs • Be a key member of the Faculty Executive Team We are seeking to appoint a Dean of Law, at Associate Professor or Professor level, to provide outstanding strategic, academic and people leadership as we aim to extend the school’s reputation and reach and become one of Australasia’s preeminent law schools.

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• Establishing an inclusive, positive faculty culture that reflects the university’s values - and taking the required measures to achieve high staff engagement. Building a leadership team to work together and help deliver the best experience and results for our students.

• Meeting the challenges of diverse student cohorts. Enhancing participation and success in law courses from Māori and Pacific student groups.

• Reaching across school/faculty/university boundaries to collaborate and achieve outcomes and improvements for the AUT Law School, including pursuing and engaging potential inter-disciplinary and trans-disciplinary opportunities.

AUT is a vibrant, achievement-oriented and rewarding place to work. We seek individuals who value diversity and work inclusively, with the ability to listen, connect, collaborate, communicate and influence.

Please visit https://careers.aut.ac.nz/jobs (ref: 77849) for further information and to access the role’s extensive candidate information handbook.

Closing date for applications is Sunday 8 August.

09

Events New Lynn lawyers’ lunch Wednesday 30 June at Bodrum Kitchen, Lynnmall Sponsored by MAS

Marnie Blank, Frances Edmonds and Fotu Hoglund

Pete Lycett (MAS), Junichi Nishimura and Andy Schlaffer (MAS)

Deborah Tait, Mary O’Connor and Ray Ganda QSM

Mary Shanahan and Marie Dyhrberg QC

Adam van Heezik, Pat Molloy and Liam Tvrdeich

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Don Thomas and Ian McWilliam (ADLS)

Jul 09 2021 Issue 22

Featured events

Connecting New Zealand Lawyers

Takapuna lawyers’ lunch Wednesday 28 July 2021, 12.30pm – 2pm Regatta Bar & Eatery, The Strand, Takapuna, Auckland Sponsored by MAS Learn More

Retirement dinner for Dr Bill Hodge Thursday 29 July 2021, 6pm – 10pm The Northern Club, 19 Princes Street, Auckland

Upcoming July

Wednesday 28 | Takapuna lawyers’ lunch, Auckland Thursday 29 | ADLS retirement dinner for Dr Bill Hodge, Auckland

August

Wednesday 4 | Hamilton sundowner Monday 9 | ADLS Newly Suited & LAWSOC buddy evening, Christchurch Wednesday 11 | Ponsonby lawyers’ lunch, Auckland Thursday 19 | Christchurch breakfast with the Chief Justice Dame Helen Winkelmann Wednesday 25 | ADLS Newly Suited meet the QCs evening, Auckland

Learn More

September Christchurch breakfast with the Chief Justice Dame Helen Winkelmann Thursday 19 August 2021, 7.15am – 8.30am The George, 50 Park Terrace, Christchurch Learn More

ADLS annual breakfast with the Attorney-General Thursday 16 September 2021, 7.15am – 8.30am The Northern Club, 19 Princes Street, Auckland

Wednesday 8 | Albany lawyers’ lunch, Auckland Thursday 16 | ADLS annual breakfast with the Attorney-General, Auckland

Soon to be added:

September | Auckland central lawyers’ lunch September | New Plymouth sundowner September | Rotorua lawyers’ lunch September | Nelson sundowner October | South Auckland lawyers’ lunch October | Tauranga lawyers’ lunch November | Hawkes Bay lawyers’ lunch

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Book Here

events@adls.org.nz

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Business evolution in a changing world

Workshop 2 CPD hrs Thurs 29 July 9am – 11.15am Presenters Katie Gray, founder, Principals of Practice; Kirsten Hodgson, life coach and business development consultant, Kaleidoscope Marketing and Coaching

In a rapidly changing and competitive legal market, lawyers must remain relevant, valued and trusted advisers to their clients. If you want to attract more ‘ideal’ clients, appeal to new markets or deepen relationships with existing clients, we can show you the skills and approaches you will need.

Limited spaces available – register now.

CLIENTS MARKETS RELATIONSHIPS

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Brightline test update: the fishhooks for your clients TAX PROPERTY RISK

Webinar 1 CPD hr Tues 3 Aug 12pm – 1pm Presenters Jayshree Khushal, technical specialists network, Inland Revenue; Helen Johnson, partner, PwC Legal and Nicky Harrison, director, PwC Legal

This webinar will shed light on the IRD’s compliance focus and how the new brightline tax rules are being developed. We will use case studies to demonstrate the issues and traps, and point out the risks. Recommended for property lawyers and conveyancers.

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Jul 09 2021 Issue 22

CPD IN BRIEF

Parole: what you need to know

Summary judgment and strike out

Seminar & Live Stream 1.5 CPD HOURS Thurs 5 August 4pm – 5.30pm Presenters Emma Priest, barrister; Lucy Smith, barrister and Jim van Rensburg, registered clinical psychologist Chair Marie Dyhrberg QC, President, ADLS

A practical session on how to be counsel in parole hearings and a refresher if you haven’t done them for a while. You’ll be given a set of sample documents, including legal aid amendments to grant, sample submissions and sample psych reports.

Webinar 1.5 CPD HOURS Tues 10 August 4pm – 5.30pm Presenters Judge Paul Kellar and Blair Keown, partner, Bell Gully

Summary judgment and strike out: the nuts and bolts and the dos and don’ts This seminar addresses the application process for both summary judgment and strike out, the practical and tactical advantages of each procedure, how best to advance or defend a case, and strategic considerations, including alternative approaches, best practice and costs.

IN PERSON

LIVE STREAM

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Personal effectiveness

Workshop 4 CPD HOURS Thurs 12 August 9am – 1.15pm Presenter Tony Gardner, Managing Director, Archetype Leadership + Teams

Reflecting on your goals for this year? Are you performing at your peak?

Is there room for improvement in your work methods? Returning for 2021, this well-received workshop will provide a range of personal effectiveness insights and tools to help increase your productivity and return-on-effort at work. It is facilitated by a leading high-performance consultant.

Limited spaces available – register now.

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When an inspector comes knocking

Seminar & Live Stream 1.5 CPD HOURS Tues 17 August 4pm – 5.30pm Presenters Tim Clarke, partner, Bell Gully; Setareh Stienstra, barrister and David Collins, team leader – Enforcement, Regulatory & Enforcement, Legal Services, Auckland Council

Clients are exposed to significant liability for incidents under resource management and safety legislation. How should you advise a client when an incident first happens? Is your client required to notify the regulator and, if so, when? How should your client deal with the regulator? Is your client required to participate in any regulatory investigation? How can your client seek to influence the process?

IN PERSON

LIVE STREAM

Medically Assisted Dying – The Deadline Approaches Thursday 19 August | Seminar & Live Stream | 2 CPD hours Visit adls.org.nz for more information.

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CASE NOTE

imprisonment.

The circumstances of Ellis’ convictions, the allegations made by the child complainants and the interview techniques used to question the child complainants have remained the subject of controversy in New Zealand, and there have been appeals and a ministerial Inquiry.

One child complainant later recanted her evidence, leading to certain convictions being quashed. In 2019, Ellis was granted leave to appeal out of time against the 13 remaining convictions, arguing there had been a miscarriage of justice. He passed away soon after, and the court ruled that his appeal could continue after his death.

The Crown now applies to adduce evidence of an alleged earlier incident from the early 1980s, where a now-adult complainant (D) alleged Ellis sexually offended against her on one occasion when he allegedly babysat her, during her pre-school years.

Applicable principles – assessment of competing arguments as to whether evidence of this alleged incident was admissible and on what basis; whether it was appropriate to admit the evidence provisionally for the court to then determine its admissibility against the background of a fully argued appeal.

D’s allegation had not been put to Ellis before his death, leading his counsel and family to note that had he been Sacha Jugum asked about the allegation he could have not only responded Appeal against 13 convictions for sexual offending against to it but also definitively answered some of the aspects that children – appellant now deceased – application by Crown were now uncertain and could not be confirmed, such as whether he knew D’s family, whether he had worked at a to adduce further evidence in support of its position on certain business and whether the details matched the known substantive appeal – applicable principles – whether location and employment of Ellis and his proposed evidence of alleged earlier family during that time. incident admissible – suppression orders The Crown now Significance of the passage of time – relevance to central issue on appeal applies to adduce when the allegation had never been put – cogency – reliability of prosecution to Ellis – assessment of evidence of Ellis’ evidence at trial – whether evidence evidence of an siblings – assessment of evidence of other could be admitted provisionally [de alleged earlier witnesses [D’s family and associates] who bene esse] – chronology of appellant’s incident from the commented on aspects of D’s evidence. trial and procedural steps – [child] Detailed discussion about the relevance complainant interview techniques – early 1980s and cogency of D’s proposed evidence, chronology of proposed evidence and and the steps taken by police to interview investigation of alleged earlier incident her and investigate the matter – reference – potential for alleged “memory error” to academic evidence of what is known as ‘memory error’ – precedent – application by Crown to adduce further that could have affected D’s evidence [the court did not evidence is declined – proposed evidence is inadmissible find it necessary to consider this type of academic evidence Ellis v The Queen [2021] NZSC 77 (Winkelmann CJ, in detail, having made its decision on another basis] – Glazebrook, O’Regan, Williams and Arnold JJ) consideration of New Zealand and overseas precedent. (substantive reasons decision as to Crown application) and [2021] NZSC 63 (earlier results decision as to Crown Held: The Crown’s application to adduce further evidence is application) declined and D’s proposed evidence is inadmissible. ■ Note: each decision and the accompanying media releases are available here In 1993, Peter Ellis was charged with sexual offending Sacha Jugum is a senior solicitor at Brookfields and against children at a Christchurch creche. He was convicted editor of the ADLS e-Bulletin. See also ■ of 16 of the 28 charges he faced and sentenced to

Court refuses to admit new Peter Ellis evidence

Sacha Jugum

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Jul 09 2021 Issue 22

NEW BOOK

Assessment of Mental Capacity: A New Zealand Guide for Doctors and Lawyers Authors: Alison Douglass, Greg Young and John McMillan The guidance in this book has been written to serve the needs of doctors, lawyers, health practitioners, families and whānau. It is written by experts from a range of disciplines including law, medicine and ethics and is based on the Toolkit for Assessing Capacity.

It combines an explanation of the law, case studies and practical guidance for health and legal practitioners about capacity, how it is assessed and what supporting people with impaired capacity means in practice.

Price: $50.00 plus GST* Price for ADLS members: $45.00 plus GST* (* + Postage and Packaging)

WILL INQUIRIES Please refer to deeds clerk. Please check your records and advise ADLS if you hold a will or testamentary disposition for any of the following people. If you do not reply within three weeks it will be assumed you do not hold or have never held such a document.

LawNEWS: The no-hassle way to source missing wills for $80.50 (GST Included) reception@adls.org.nz

ADLS, PO Box 58, Shortland Street,

DX CP24001, Auckland 1140

Fax: (09) 309 3726

( 09) 303 5270

MORGAN Neville David • Late of 1255 Wekaweka Road, Kaiwaka • Aged 60 / Died 31’01’21

To purchase this book, please visit adls.org.nz; alternatively, contact the ADLS bookstore by phone: (09) 306 5740, or email: thestore@adls.org.nz.

Chancery Chambers office for rent

ĀKARANA CHAMBERS | HIGH STREET An additional member is sought to join several experienced barristers and junior barristers in our refurbished, light-filled, contemporary, collegial High Street chambers. On offer is a medium-size office at a highly competitive rate that would suit a range of barristers including a junior barrister.

The modern office amenities include a large meeting room with harbour views, kitchenette, adjacent car-parking building and availability for secretarial and junior barrister support.

Terms negotiable include monthly tenancy.

Please contact: Alex McDonald | alex@amcdonald.co.nz Stuart Ryan | stuart@stuartryan.co.nz www.akaranachambers.co.nz

Law Firm Ownership Opportunity An office is available in the heritage Chancery Chambers building on the corner of Chancery and O’Connell Streets.

The office is 33.71sqm and is located on the third floor of the O’Connell Street side of the building.

Opex includes reception to greet clients/receive couriers, kitchen facilities, copy room access and use of shared meeting rooms.

Please contact Krystal Marshall on (09) 303 5277 or krystal.marshall@adls.org.nz for more information

An affordable opportunity for an entrepreneurial lawyer to purchase their own practice. Ideally suited to a young lawyer after a different pace and flexibility, ready to step out on their own, but with an existing client base and law firm structure, without the hassle of starting from scratch.

The current sole practitioner of this virtual/home [Auckland] based law firm wishes to exit for family reasons. They make a good return from minimal hours work. Continue as is for great work/life balance or use it as a base to grow from. The current director could stay connected to the firm as required.

Areas of practice include property, commercial and general practice.

Please email expressions of interest to: lawfirmadvertiser@gmail.com 15

LAWYER We are looking for a Lawyer with a minimum of 2 years’ PQE, to join our team. The role is to assist and work with a Director, so is a great opportunity for you to develop your skills and experience.

Are you looking for a role that is all about people?

Do you have 4 + years’ PQE experience?

Essential Attributes: • Experience in dealing with clients, managing your own files.

• Experience in Conveyancing, Commercial, Trusts and Estate work.

• Able to operate in a collaborative environment.

• Experience with legal software such as Actionstep is a plus.

At The Law Connection, we pride ourselves on best practice legal advice whilst always keeping people at the centre of what we do.

Are you currently working at a senior level but have ambitions to reach new heights?

Our offer: • Innovative & diverse team. An excellent collaborative culture.

• Great lifestyle choice.

• Market salary, benefits and opportunity for career path.

• Established precedents and technology.

• Reasonable relocation expenses.

• Flexible working arrangements by negotiation.

We are looking for the right person to progress their career and come on a journey with us, with the end goal of becoming a future partner.

If this excites you then you may well be the ONE! Along with simply being a great human being, we are looking for somebody with a wide range of experience that can work across all areas of The Law Connection teams practice.

With a stunning Raumati Beach location, a lunchtime stroll beside the ocean will become part of your everyday!

Please email your resume and covering letter to Neil Dickson (neil@jmjlawyers.co.nz)

We are a friendly bunch and support our team to achieve their goals and live their best lives.

Walk in to a great long-term client base ready for you to get started and make a real difference in our clients’ lives – what are you waiting for?

Applications by email to: paula@lawconnect.co.nz

Taking the Opportunity: Supporting your Team through Challenge Thursday 26 August | 12.00pm - 1.30pm In this webinar, the presenters will share recent research and findings on the causes of employee burnout (including remote working burnout experienced as a result of COVID-19) and ways legal leaders can mitigate this risk.

T 09 303 5278

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E cpd@adls.org.nz

W adls.org.nz/cpd

Jul 09 2021 Issue 22

Bookstore A convenient, one-stop-shop for all your legal resources ADLS members, including student members, receive a 10% discount

Visit the online bookstore:

adls.org.nz/bookstore Phone:

09 303 5270 Email:

thestore@adls.org.nz

The ADLS Bookstore couriers nationwide.

Or, browse in person at: The ADLS Bookstore Ground Floor Chancery Chambers 2 Chancery Street Auckland CBD

Class and Funded Litigation: Knowing your Professional Obligations Tuesday 24 August | 4.00pm - 6.15pm This seminar is intended to help lawyers navigate this difficult and potentially perilous field, identifying and avoiding professional issues before they become a problem.

T 09 303 5278

E cpd@adls.org.nz

W adls.org.nz/cpd

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